A/HRC/34/54
notably, the right of peaceful assembly, freedom of expression and the right to life. Further,
the Special Rapporteur plans to examine the extent to which the use of certain types of
weapons, riot control devices or other means and methods of law enforcement would have
to be considered intrinsically cruel, inhuman or degrading in the light of their immediate to
long-term consequences.
43.
In interpreting the relevant legal provisions, the Special Rapporteur will be guided,
among other sources, by State practice, international jurisprudence and two soft law
instruments widely recognized to reflect generally recognized conditions and modalities
governing the use of force by law enforcement officials: the Code of Conduct for Law
Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials. The Special Rapporteur intends to conduct his thematic work in this
area based on consultations and expert meetings with relevant stakeholders and experts, and
building on earlier analyses by other special procedure mandate holders who explored
similar issues.12
E.
Torture and ill-treatment by non-State actors
44.
So far, steps taken by the mandate to combat torture have focused almost entirely on
States as potential perpetrators. Yet organized armed groups, private military and security
contractors, mercenaries, foreign fighters and other non-State actors are increasingly
engaged in conduct that adversely interferes with human rights, including the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment. For the absolute
and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or
punishment to retain its practical relevance, however, it must also provide for practical
protection against violations on the part of non-State actors.
45.
This focus area raises questions of the due diligence of States as well as, to a certain
extent, of the direct obligations of non-State actors as far as the absolute prohibition of
torture and other cruel, inhuman or degrading treatment or punishment is concerned. It
should be recalled that, although non-State actors are not directly bound by human rights
treaties, there are other treaty provisions prohibiting torture and other cruel, inhuman or
degrading treatment or punishment that may be directly binding on them. Most notably,
under international humanitarian law, both States and non-State actors are absolutely
prohibited from resorting to torture and other cruel, inhuman or degrading treatment or
punishment for reasons related to an armed conflict. Moreover, any person resorting to
torture or other cruel, inhuman or degrading treatment or punishment amounting to a war
crime, a crime against humanity, or even genocide is subject to prosecution under
international criminal law. Arguably, the universal prohibition of torture and other cruel,
inhuman or degrading treatment or punishment can also be based on a general principle of
law, namely what the International Court of Justice referred to as “elementary
considerations of humanity”. According to article 38 of the Statute of the International
Court of Justice, such general principles of law constitute an independent source of
international law along with treaties and custom.
46.
As far as the due diligence of territorial States is concerned, the Special Rapporteur
is of the view that the exercise of control by an organized armed group as de facto authority
over the population of a State does not deprive the people living in this territory of their
rights.13 States therefore have a due diligence obligation to protect individuals under their
jurisdiction from cruel, inhuman or degrading treatment or punishment on the part of non12
13
As contained, for example, in documents A/66/330, A/HRC/17/28, A/HRC/26/36 and A/HRC/31/66.
Human Rights Committee, general comment No. 26 (1997) on the continuity of obligations.
11
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